Opinion
No. 11,427.
Decided January 16, 1926.
Action on promissory note. Judgment for plaintiff.
Reversed.
1. JUDGMENT — Default — Court Discretion. Under the facts disclosed it is held that the trial court abused its discretion in overruling a motion to set aside a default judgment and permit defendant to answer.
Error to the District Court of the City and County of Denver, Hon. George F. Dunklee, Judge.
Mr. CHARLES E. FRIEND, for plaintiff in error.
Messrs. EWING ARNOLD, for defendant in error.
THESE parties appeared in reverse order in the trial court and we hereinafter refer to them as there.
Plaintiff sued defendant on a promissory note. Summons and complaint were served in Denver September 10, 1925, and default and judgment entered October 2, following. Eight days later defendant moved to set aside the default and presented a prima facie meritorious defense. His counsel set forth by affidavit, among other things, his employment in the cause, his instructions to defend, that through error he had noted October 7 on his office calendar as the date for answer, that on said date he prepared and filed answer, and then for the first time learned of his error and that judgment had been entered five days before. Considering these and other allegations we think the court abused its discretion in overruling the motion. Sec. 81, Civil Code p. 116, C. L. 1921; Gumaer v. Bell, 51 Colo. 473, 119 P. 681.
The judgment is reversed, and the cause remanded with directions to set aside the default and permit defendant to answer.
MR. JUSTICE CAMPBELL not participating.